Somebody has to be the grownup here. The new Congress surely could be the adult, and one thing it could do would be for it to enact a simple new tool to limit the ability of agencies to run wild.

These new rules imposed by unrestrained government agencies come in the wake of myriad pollution controls, workplace and manufacturing mandates, and countless other regulations already costing well over $1.7 trillion every year, according to a new Small Business Administration report. Agencies spew these regulations at the rate of over 3,000 each year, and they often undermine the competitive process’s superior ability to lessen risk.

In any event, once established, federal regulatory agencies face overwhelming incentives to expand turf (consider again the FCC, an agency that’s largely obsolete apart from the role it should be playing in privatizing spectrum). Apart from budget growth and number of employees, the only gauge of an agency’s “productivity” is the regulations it issues, as
Cato
Institute Chairman Emeritus William Niskanen’s work on bureaucratic incentives best explained. They could make a reality show about all this pandemonium, but it would be too scary for most to watch.

In order for the economy to recover, businesses–both small and large–need to end rampant “regulation without representation,” as in the over-delegation of power to unelected federal agency employees. The problem is that the political apparatus has shirked its duties when it comes to providing the necessary–adult–oversight. It’s like the kids are home alone with P. J. O’Rourke’s “whiskey and car keys.”

Whether Congress delegates excessive power or whether agencies simply assume it, blaming or scolding agencies for emphasizing the very regulating they were set up to do by Congress in won’t help. If Congress is the ultimate source of over-regulation, then regulatory reform must be seen as congressional reform, just as Congress has been the target of other popular reforms aimed at reining in government over-reach, such as term limits, committee reform and subjecting Congress to its own laws.

A proposed, fundamental solution is the REINS Act (“Regulations from the Executive In Need of Scrutiny”), from Rep. Geoff Davis (R-KY) and Sen. Jim DeMint (R-SC). REINS would require congressional approval of “major” ($100 million-plus) rules and regulations before they are binding.

This requirement, that elected representatives affirm significantly costly new agency rules, would change rulemaking dynamics entirely, creating incentives that would drive agencies to ensure that their rules meet plausible cost-benefit benchmarks before sending them back to a newly answerable Congress.

In regulatory policy, as with the tax code, it’s properly Congress’ job to make the grand judgments about where benefits lie and to take responsibility for the priorities and results that emerge. One wrinkle is that agencies often don’t own up to the costs of their rules, so REINS should also hold for rules that a member designates as particularly controversial, not just “major” ones.

Indeed, policing agency cost-benefit analyses becomes less important once we require Congress–our elected representatives–to approve new agency rules before they are binding on the public. If Congress then does a poor job ensuring net regulatory benefits, we have recourse at the ballot box. We lack First-Tuesday-In-November style leverage with agencies.

REINS could help maximize regulatory benefits more than today, because the knowledge that Congress gets the final word would inspire agencies to “compete” against one another to demonstrate to their masters in Congress the superiority of their final rules in terms of lives saved or some other metric, rather than think within their own square as they do now.

Whatever one thinks of the regulatory state as a phenomenon (and this writer is skeptical of it), ultimately the process set in motion by the REINS Act would impel Congress to reapportion regulatory authority based on results achieved or not achieved. Without Congress doing its necessary job as overseer, we will always lack the power it will possess over agencies.

The best part is that reform like the REINS Act will place each elected representative on record as either in favor of or opposed to each of the 100-plus costliest and most controversial regulations pouring out of agencies each year. Today, Congress adores taking credit for feel-good legislation like the Clean Air Act, while blaming agencies when regulatory compliance costs later spiral. At present, the agency bureaucrats that Congress blames aren’t accountable to voters.

So while Congress spends way too much and will likely regulate too much also, we at least can assure that we will only get regulation with representation, which does count for something.

If anyone ever bothered to ask them, it’s doubtful that many Americans believe they should be bound by laws enacted by people they didn’t elect. Appreciating the simple, awesome power of that fundamental tenet of democracy, the REINS Act and its ilk provide the grounding and moral legitimacy for mounting a successful bipartisan overhaul of the non-representative regulatory state.

That simple overhaul, which would in turn stem the new wave of regulations about to hit, is one important shortcut to economic recovery.

Wayne Crews is vice president for policy at the Competitive Enterprise Institute and author of the annual Ten Thousand Commandments report on government regulation.